People v. Pinkerton , 1889 Mich. LEXIS 907 ( 1889 )

Campbell, J.

Eespondent was convicted under an information charging her with keeping a house of ill fame, resorted to for the purpose of prostitution and lewdness. She was at once sentenced to imprisonment in the Detroit House of Correction for two years. The case is brought here, by writ of error, on exceptions, and several errors are presented for our review. As the case can be dealt with by classing the questions together, we shall refer only to such as seem most material.

In view of some features of the argument, it seems proper to remark that the respondent was not on trial for anything but a specific statutory crime; and it is quite immaterial whether she is or not an exemplary person. When on trial for any charge, that is the only matter that should be allowed to enter into consideration. She is entitled to a fair trial on that alone, and is entitled, on that trial, to have decent treatment from all persons engaged in the prosecution, and to be protected carefully against invasions of legal right.

The only two issues which were pertinent were—

1. Whether she kept a house of ill fame.

2. Whether it was resorted to for purposes of prostitution and lewdness.

Under the first head, it must be carefully noted that this statute is not aimed merely at unchastity. Such a house, if usually, is not necessarily, kept by persons who are themselves given over to promiscuous intercourse. It is intended to reach only such houses as are sufficiently notorious to have acquired that specific reputation, so that they áre offensive as nuisances, in which category they are legally classed, in the vicinage, small or large, where the evil offends; and, in addition to evil report, ik must be shown to be attended with the actual resort of evil persons for the lewd purposes named in the law. If there is individual misconduct of any less general and public character, it must be reached in some other way. And the utter destruction of reputation that justly reaches persons-guilty of such an offense as is charged is reason why no person should be convicted of it without full legal proof. It is a charge which, if false, is a cruel one; and while the law has no, particular regard for actual criminals, it protects, or should protect, against false charges.

It is, or presumably is, singular that on this trial no one gave any definite testimony of the ill repute of the house, except the police officers, and those who were acting with them, and that the only evidence identifying resort to the house for evil purposes, by any persons known or pointed out, was of a person who was in concert with the police, and who went for the purpose of furnishing proofs. It should be hardly necessary to say that a house visited, or even resorted to, by no more than one person, cannot come within the statute.

Among other testimony which we think was improperly let in was the testimony of various persons who claimed that she made statements to them about her husband, who was not living in this house, and of her arrest, many years before, on a charge of prostitution. All testimony, even of conviction, and not merely of accusation, of crimes or misconduct not in -issue, is improper. It raises false issues, and is likely to lead a jury to try the accused of what is not in the information. This doctrine is elementary, and has been too frequently held to need citations. Some of this testimony was subsequently stricken out; but the circumstances were as improper as the fuller testimony, and it cannot heal the error to strike out testimony once received under objections, if it has a serious tendency. This same remark will apply to misconduct not criminal; and, in a criminal case, we do not think it competent to compel, respondent, who is a witness, to answer questions irrelevant to the issue, having a tendency to bring in other charges. Whatever latitude is proper in cross-examination to test veracity, it cannot properly introduce independent issues against the person who is both witness and respondent.

The charge, which, in its general features, was properly qualified, failed to meet some of the questions -which were brought to notice.

The court did not call the attention of the jury sufficiently to what is meant by “ill fame.-’-’ We think it was necessary, under the statute, to show ill repute in the vicinity. Certainly, no less certainty of ill repute of a house is needed than would show it of a person. Rumors at a distance do not make up reputation. This is more particularly worthy of regard here because the only ill repute shown is given by the police officers; and they are no better witnesses of repute than other persons, even where impartial, as they do not seem to have been here. They do not give very definite facts as to ill repute; but, if they heard it in the neighborhood, it is singular that no one else was called. The court, however, did not require any proof of local repute to be given.

The court, in reference to the witness who was, or was claimed to have been, sent to entrap respondent, did not meet the points fully. As already stated, this man was the only person identified by name or otherwise as having been at the house for evil purposes. The court did not charge that a single act was not enough, except in connection with the further fact that this man was employed to entrap respondent. The importance of showing that the house was “resorted to/' which means something of a common occurrence, was entirely overlooked.

We have had doubt whether the case should not have been taken from the jury, but we shall not now pass on that question. It is certainly a very peculiar record, which is not creditable to the police, and which indicates & harsh and vindictive temper in the methods of prosecution, which had no tendency to bring credit on the persons engaged. It is scandalous to use means to persuade persons into crime; and, without what clearly appears to have been such collusion, we do not think the record shows very much in the way of testimony, if it does anything.

Whether this woman is reprobate or not, justice is not respected when it disregards its own safeguards against oppressive prosecution.

We think a new trial should be granted, and that respondent should be admitted to bail in $1,000.

Champlin, Morse, and Long, JJ., concurred.